Attorney Guide Dividing Military Reserve Retirement Pay

© 2011-2013 Brian Mork, Ph.D. [Rev 1.43]

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Introduction

Divorce is a path some people have to live with, and under these situations, it is beneficial to pursue equity dividing marital assets.  When dividing the marriage asset of military retirement pay, the issues are different than any other type of retirement. This web page describes military Reserve (or National Guard) specific issues.  If your concerns are more general in nature, see other web pages describing Dual Coverture , Promotion Enhancement, or Dual Coverture Value calculations. An example division is shown using the DCV Method.

If you are a legal client going through a divorce, download "Attorney Instructions - Division of Reserve and Active Duty Military Retirement" from the references below and make it available to your lawyer and your court.  The idea is that you want to get this information in front of your judge - first to help him/her understand something that they have no experience with, and secondly, you want the facts and explanations in the court records in case of an appeal.

If you are an attorney, then this web page, it's sister pages referenced above, and the reference links at the bottom of all pages, are a gold mine.  Forget the confusion; these pages explain what you need to know, with proper legal and citation "hooks" to customize the information for your case.  You will find that if a court is familar with anything about military retirements, it is probably limited to Active Duty Retirement.  Beyond that, a court must understand Reserve Retirements.  Beyond that, a court must understand Reserve Early Retirement.

Reserve Early Retirement is an issue of first impression, so be prepared.

Background


Discussions about military retirement typically center around the the amount of military payments to be received each month by the non-military ex-spouse, and if their is possibility for future military promotions after the divorce, you should read about how to properly do calculations when there are promotion enhancements after divorce.  The salient point on this web page is that a military retirement asset is the multiplication of the amount each month multiplied by which months payment is received.  Up until 2008, this distinction has not mattered because all military payments were comingled together, portioned out with coverture fractions.

As of January 2008, a change occured in Federal Law.  For a Reserve military retirement, there are now 2 quantifiable different military retirements that have to be individually assessed to be a marital asset or not.  The two retirements do not comingle in any way, and the new retirement does not modify or affect the traditional retirement in any way.  Retirement pay earned after the Reserve military member turns 60 is the traditional retirement that some courts may be familiar with.  For a Reservist, the 2008 law authorizes retirement payments before age 60.  This retirement, by Federal Law, can be earned ONLY by active participation after January 28, 2008.  In the simplest case, if the marriage ended before January 28, 2008, the before-age-60 payments are not a marital asset. The DoD Congressional report says it clearly in a way consistent with every state law:

"[Giving ex-spouse a portion of post-marriage benefit] of military retired pay is inconsistent with the treatment of other marital assets in divorce proceedings—only those assets that exist at the time of divorce or separation are subject to division. Assets that are [actively] earned after a divorce are the sole property of the party who earned them."

The State of Michigan Appellate court also ruled about bonuses earned after the divorce belonging only to earner of the bonuses.

The new Federal law has big implications on how the military retirement division order should be written if any portion of the marriage was before January 28, 2008 and any portion of the military duty was before January 28, 2008.

Discussion


Regardless of when a military Reserve member enters retired status, 10 USC 12371(a) authorizes retirement payments only at and after military member age 60.  However, as of January 2008, 10 USC 12731 authorizes a Reservist to receive additional payments before age 60 by working duty days after January 28th, 2008.  An Air Force news release explains this new law. Title 10 USC Section 12731(f), describes this new, separate, and distinct, marital asset to be divided.

Your Reserve retirement consists of two separate and distinct, and not comingled retirements:
  1. Retirement earned after 1/28/08 (payments received before military member age 60).
  2. Retirement earned before 1/28/08 (payments received after military member age 60).
With the prior traditional Retirement military retirement, there is a commingling of effect of marriage duty years such that years are treated equally and prorated for division based on a count of how many military years were also married years—this is the “coverture fraction” most attorneys are familiar with. Comingled means that a date associated with a retirement points could be moved to any other period of the marriage and the total retirement value does not change.  This is not true when moving a date across the 28 January 2008 boundary, and therefore demonstrates that the two retirements are not combinable or comingleable.

It’s important to note 10 USC 12731(f)(2)(A) clearly and quantifiably defines the receipt of retirement pay before age 60 dependent if and only if military duty was done January 28th, 2008 and after. Because of the hard date in the sand, there is no commingling and the new retirement benefit is properly divided as a separate asset.  If a marriage ends before January 28th, the ex-spouse in no way contributes to the retirement points activelyl earned after January 28th,  which are the only points authorizing pay before age 60.

Argument Against


One may argue in some Talmudic way that the military member is re-using shared marital points to calculate the before-age-60 benefit, or that additional benefit is "based on" the marital portion of the benefit, and therefore the ex-spouse should “get a cut” of the benefit. This argument lacks legal integrity in the face of a division order that awards division of military retirement benefit "accrued during the marriage" or "earned during the marriage". I will show below that the vague concept of "based on" logic cannot be the intent of a division order because it would lead to absurd and hugely inequitable ramifications.

Consider the portion of a divisible marital point value that is awarded to the non-military member.  Parlaying or using these divisible points, which do not wholely belong to one person or the other, into higher value is not foul play, and does not invoke divisibility of the higher value enhancement. Here's why the separate and non-comingled asset value in the form of early retirement payments cannot reasonably be divisible:
  1. Allowing benefits earned and accrued after the marriage to be sucked into a marital asset because they are based on or calculated from marital property is untenable because the idea would a) need to be applied with symmetry to both spouses, and b) never allow lives to separate, dishonoring the very definition of divorce.  Examples:


  2. The additional value of retirement points (payments before age 60) earned by the military member after the marriage in no way decreases the prior value to the ex-spouse and therefore should not be encumbered. 5 USC 8332(c)(4) is an example of how ex-spouse interests are already protected by Federal Law:  if the point value were decreased (it is not), then the ex-spouse may invade the additional or dual-use value.  However, Federal law limits how much the additional value can be invaded to the extent required to make their original point value whole.  In the case of before-age-60 benefit, the point value retained by the ex-spouse is NOT decreased, so invasion of the new benefit is not appropriate.  Even if it were, Federal law shows that it should be restored to only the original value, which means potentionally unlimited additional value is NOT to be divided. This statute demonstrates the Federal intent that enhanced point value actively earned after the marriage belongs entirely to the military member doing the work except in the case where it decreases ex-spouse payments, and then it is to be shared only to the extent that restores original value.  The Reserve Early retirement does not affect original value, and is therefore not to be shared.

  3. The ex-spouse contributes no partnership to the early payments, and therefore should expect nothing from the early payments. Because the ex-spouse contributes nothing after the marriage, that is how they should expect their payment to change: the ex-spouse payments should be blind to any increases the ex-spouse is not part of.  There is one exception, where both parties are trapped by Federal law. Although the retirement asset would be ideally divided at the time of divorce (like a 401(k) or IRA), the Federal government forces both parties to wait for disbursement until after the military member retires.  Because both parties have to wait for distribution of the asset until some future time after the divorce, they are both compensated for the "time-value of money" or "cost of living adjustments" via passive annual increases of the military pay chart, to which retirement payments are indexed. Passive increases may be divisible; earned active increases are not. The DCV method of division is the simplest and most lucid way to do this.

  4. Once the early retirement benefit is earned or authorized, exactly how it is calculated is a private benefit or entitlement matter between the military member and employer.  Additional value or dual-use value of each retirement point is added solely by the work of one person after the marriage.  Therefore, the added benefit associated with the added value belongs to only that person contributing to that value. By way of anology, if a military member were to receive a retention bonus after the marriage by signing a contract to staying in the military for an additional number of years, the ex-spouse would gain no portion of that bonus, even though the military member was eligible for the bonus only because of longevity including military years done during the marriage.  The new retirement is indistinguishably identical in this respect: it is a financial retention motivation tool, obtained via a performance contract after the marriage that does not include the ex-spouse.

  5. The enhanced value of the aggregate retirement asset is created by earning more pay dates, not changing how much is paid on each pay date.  All prior USFSPA law and case precedence is about determining how much is paid to whom on each date.  According to Federal statute, the enhanced value given by the new law is quantifiable separate and distinct retirement benefit.  The ex-spouse contributed nothing toward the extra days, which create additional pay dates, not additional pay amount. Retirement payments before military member age 60 are not marital assets, so a divorce court has no authority to divide them under UFSPA. The DCV division methods can easily do the quantitative and equitable division, or other methods can be used because it's an issue of which payments are divided, now how much each payment is divided.  In the case of a marriage that ended before January 28, 2008, a court order should simply state that payments before military member age 60 are not to be divided.

  6. Consider a reverse case where the military person worked solo military for years before marriage.  Courts have been loathe to say the ex-spouse portion of marital years are "based on" or "because of" prior solo military duty and therefore they should get less than half of the marital years.  If solo military duty before marriage does not reach forward to reduce the division of marriage years because of a "based on" relationship, then marriage years should not reach forward and increase the division of post-marriage years because of a "based on" relationship.   The problem is that using vague "based on" arguments is kind of like saying a person's 50th year of life is based on the fact that they completed the 40th year of life.  This logic is not allowed in the court because then the entire rest of a person's life would be divisible as marriage asset. There is no place for intentionally vague and legally undefined "based on" or "because of" language in court proceedings.

  7. The number of days retirement received early (before member age 60) is proportional to the amount duty days after the law.  For example, twice as many days after the law earns twice as many days of retirements before age 60.  The early retirement is not proportional to the number of duty days before the new law, mathematically showing that only duty after the law is important.

  8. The extra retirement pay dates requires no prior rank, no prior seniority, no prior duty. It is a totally separate program. It is quantifiable separable and independent, authorized by separate dates of duty, authorized by a new paragraph of Federal statute.  Simply because the separate benefit is also called “military retirement”, courts often confuse the issue.  However, if courts do not take the time to understand and separately allocate this retirement benefit, their error is as egreggious as if they lumped all “IRAs” or all “401(k)s” or all “pensions” together just because they have the same name.  It is unconsciousable and exhibits judicial malpractice to say that a 401(k) or IRA started after the marriage should be divided simply because it's called the same name!!
The 10 USC 12730(f) issue is ideologically a question of whether an ex-spouse should have a portion of every good thing that happens to a military member after the marriage, or whether a best-effort attempt is to be made to divide an asset earned prior to the divorce that are impossible to disburse until later in life.  To attempt to give the ex-spouse a portion of every good thing after the divorce dishonors the very concept of divorce.  If this were allowed, should the courts also try to divide a portion of the bad military experiences after marriage – deployments, absence from family, inability to spend time with children, possible loss of life?   Both sides are forced to bear the burden of delayed payment by the military retirement rules, and both are compensated in the form of time-value of money increases through the intervening years that raises the dollar amount of payments. 

Practical Legal Implementation


In the case of a marriage that ended before January 28, 2008, a court order should simply state that payments before military member age 60 are not to be divided.  For those members who were married and did military duty before 1/28/08 and have earned or may in the future earn this retirement enhancement by earning points after 1/28/08, a decision must be made as to whether payments before age 60 are a divisible asset or an un-divisible asset.  The answer to this question would depend on the period of marriage, divided into 3 possibilities:

1.    If the marriage was entirely before 1/28/08, then the before age-60 retirement payments were earned only after the marriage, so the benefit would be retained 100% by the military member.  The traditional formula for the division is fine (use the Dual Coverture or Hypothetical Method or DCV method as described elsewhere).  However, the division order must specify that no division occurs until member age-60.  Caution: If the division order is silent on this issue, all retirement payments will be incorrectly divided by DFAS, so the order must state that payment division will begin only upon the military member reaching age 60. 

2.    If the marriage was entirely after 1/28/08, then the before age-60 monthly payments are divided same as after age-60 monthly payments.  Correct division will occur by not mentioning this issue at all in the order (DFAS will divide all payments the same).

3.    If the marriage spans 1/28/08, before age-60 monthly payments need to be prorated with coverture fractions as traditionally done with the age-60 and after payments. However, the numbers for the coverture fractions for the two retirements will be different, so two formula paragraphs must be written for DFAS to use.  The formula paragraphs should reflect dual coverture fractions to include corrections for possible future military rank promotions.  If there was no military duty before the marriage, the formula paragraphs below (to be used together) to accomplish a proper division.  If there was military duty before the marriage, two paragraphs from the DCV method must be used for equitable division.

For division of retirement pay paid after member age 60, the former spouse is awarded a percentage of the member’s disposable military retired pay, to be computed by multiplying 50% times two fractions, the first numerator of which is [put here the total number of points earned during the marriage], and the first denominator of which is the total number of points during the member’s creditable service, and the second numerator is the base pay of a [put here the military pay chart service time and rank at the time of divorce, such as “17 year Major” or “18 year O-5”] taken from a 2012 military pay table, and the second denominator is the base pay of the member upon retirement, taken from the same 2012 military pay table.

For division of retirement pay paid before member age 60, the former spouse is awarded a percentage of the member’s disposable military retirement pay, to be computed by multiplying 50% times a fraction, the numerator of which is [put here the number of points earned during the marriage after 1/28/08], and the denominator of which is the total number of points during the member’s creditable service after 1/28/08, and the second numerator is the base pay of a [put here the military pay chart service time and rank at the time of divorce, such as “17 year Major” or “18 year O-5”] taken from a 2012 military pay table, and the second denominator is the base pay of the member upon retirement, taken from the same 2012 military pay table.

The year 2012 in the above formula text can be replaced with whatever year is relevant in your situation (date of separation, trial, finalization, retirement, whatever). Because the ratio of base pay stays pretty much the same throughout the years, it doesn't matter much what year paychart is used.

These two formula paragraphs above reflect the Dual Coverture method considered and sanctioned by a New Jersey Appellate Court in January 2011, and advocated by the DoD report to Congress.  The non-military spouse benefit is the same as provided by the DFAS-published Hypothetical Method in their “Instructions to Attorneys” document, while being much simpler.  If there were military duty before marriage, Dual Coverture Value methods would have to be used.  Note the New Jersey Court made a huge factual error, spending 2 pages of their opinion incorrectly claiming the above methods deprive COLA to the non-military member.  With the above formula paragraphs, there is no requirement to mention COLA for either person in order to get COLA for both.  The two above paragraphs create fractions (such as 0.6583 or whatever), and because these fractions will be applied to the COLA-adjusted base retirement pay for any month of retirement, COLA automatically happens for both people as the base retirement pay goes up each year.
 

Conclusion

To pursue equity, family law courts must recognize the new Reserve "early" military retirement as a separate and distinct entity.  It may or may not be a divisible marriage asset.  If this issue is not addressed in the original division order, every Reserve military member who earns a "before age 60 benefit" (possibly long after the divorce) will be back in court asking the court to address this issue in compliance with the original intent of the division order.  This is consistent with DoD's report to congress which says:

"[Giving ex-spouse a portion of post-marriage benefit] of military retired pay is inconsistent with the treatment of other marital assets in divorce proceedings—only those assets that exist at the time of divorce or separation are subject to division. Assets that are [activley] earned after a divorce are the sole property of the party who earned them."


References

  1. "Uniformed Services Former Spouses' Protection Act (USFSPA) Attorney Instructions - Dividing Military Retired Pay". April 2001. (DFAS.mil, increa copy) (19 pgs, 74kb pdf).
  2. ""Guidance on Dividing Military Retired Pay". Updated version of DFAS attorney instructions.  2 April 2012( DFAS.mil, increa copy).
  3. DoD Report to Committee on Armed Services of the US Senate and House of Representatives, 1998. (Defense.gov, increa copy) (84 pgs, 279kb pdf)
  4. Attorney Instructions - Division of Reserve and Active Duty Military Retirement (increa copy).
  5. Division of Blog post Dual Coverture is better than DFAS Hypothetical Method, February 2011
  6. "Reservists may qualify for early retired pay," www.afrc.af.mil news release (increa copy), 24 Feb 2009.

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This article originally appeared on the Increa.com blog.  The shell of this expanded document was created using AbiWord under the Linux Gnome desktop. Content was edited using Kompozer. (c) 2013 by Brian Mork.